ENGLISH ABSTRACT: The 1996 Constitution provides in s 25(7) that individuals and communities who
had been dispossessed of rights in land after 19 June 1913, as a result of past
discriminatory laws, may claim restitution or equitable redress. The Restitution of
Land Rights Act 22 of 1994 reiterates the 1913 cut-off date for restitution claims.
The cut-off date appears to preclude pre-1913 land dispossessions. Various
reasons are cited for this date, the most obvious being that it reflects the date on
which the Black Land Act came into effect. The Richtersveld and Popela
decisions of the lower courts appear to confirm the view that historically based
land claims for dispossessions that occurred prior to 1913 are excluded from the
restitution process.
In Australia and Canada restitution orders have been made possible by the
judicially crafted doctrine of aboriginal land rights. However, historical restitution
claims based on this doctrine are constrained by the assumption that the Crown,
in establishing title during colonisation, extinguished all existing titles to land. This
would have meant that the indigenous proprietary systems would have been lost
irrevocably through colonisation. In seeking to overcome the sovereignty issue,
Australian and Canadian courts have distinguished between the loss of
sovereignty and the loss of title to land. In this way, the sovereignty of the Crown
is left intact while restitution orders are rendered possible.
South African courts do not have to grapple with the sovereignty issue since
post-apartheid legislation authorises the land restitution process. The appeal
decisions in Richtersveld and Popela recognised that some use rights survived
the colonial dispossession of ownership. This surviving right was later the subject
of a second dispossession under apartheid. By using this construction, which is
not unlike the logic of the doctrine of aboriginal title in fragmenting proprietary
interests, the second dispossession could then be said to meet the 1913 cut-off
date, so that all historically based land claims are not necessarily excluded by the
1913 cut-off date. However, it is still possible that some pre-1913 dispossessions
could not be brought under the umbrella of the Richtersveld and Popela
construction, and the question whether historically based restitution claims are
possible despite the 1913 cut-off date will resurface, especially if the claimants
are not accommodated in the government’s land redistribution programme